Lewis v. Lewis, A12A0601.

• Decision Date: 25 May 2012
• Docket Number: No. A12A0601.,A12A0601.
• Citation: 316 Ga.App. 67,728 S.E.2d 741,12 FCDR 1797
• Parties: LEWIS v. LEWIS.
• Court: Georgia Court of Appeals

316 Ga.App. 67

728 S.E.2d 741

12 FCDR 1797

LEWIS

v.LEWIS.

No. A12A0601.

Court of Appeals of Georgia.

May 25, 2012.

Rachel Miller Lazarus, David Alfred Webster, Deborah Ann Johnson, Atlanta, Charles R. Bliss for Appellants.

Willie M. Lewis Jr., for Appellee.

BLACKWELL, Judge.

Bethany Lewis appeals from the dismissal of her petition under the Family Violence Act, OCGA § 19–13–1 et seq., in which she sought a protective order against Willie M. Lewis, Jr., her estranged husband. We conclude that the court below erred when it found that, to obtain such a protective order, Bethany was absolutely required as a matter of law to show that her husband had committed a “reasonably recent” act of family violence against her. Accordingly, we vacate the dismissal of her petition and remand for further proceedings consistent with this opinion.

The undisputed evidence ¹ shows that Willie and Bethany were married in March 2007, and their marriage soon became marked by harassment, threats, and violence, directed by Willie toward Bethany. They separated in July 2010, following an incident in which Willie attacked and choked Bethany and threatened to kill her. At that time, Bethany moved to a new residence, the location of which she attempted to keep from Willie. Nevertheless, Willie eventually located the new residence, and on more than one occasion, he appeared at the residence unannounced and proceeded to harass and threaten Bethany. In October 2010, Willie appeared at the residence, where Bethany was in the driveway, putting their four young children into her car. After assaulting Bethany, Willie drove off with her car and the children, leaving Bethany with an injured arm and a cut on her abdomen. Bethany then took out a warrant for his arrest. In the aftermath of this incident, Willie agreed to stay away from her residence and refrain from contacting her except with respect to visitation with their children, and he moved to another state. ²

Willie moved back to Georgia in or around March 2011, at which time Bethany moved to another residence and again attempted to keep her address from Willie. On July 18, however, Willie came to Bethany's new home, enraged because he had been served with a lawsuit for child support. Bethany testified that, based on her past experience with Willie, she feared that he was about to become physically violent toward her, mostly “because of the look on his face and his demeanor.” She further explained that, based on comments Willie had made to her about his child support payments to another woman with whom he had fathered a child, Bethany believed that Willie would attack her physically if and when he was ordered to pay child support. On July 20, therefore, Bethany applied for and obtained an ex parte temporary protective order under OCGA § 19–13–3(b). A few days later, the court below convened a hearing to consider whether the order should be extended for 12 months. At the conclusion of that hearing, the judge stated that, although she found Bethany's testimony regarding Willie's history of violence “extremely credible,” the judge nevertheless was constrained to dismiss the petition for a protective order because Bethany had failed to meet her statutory burden of proof. Specifically, the judge noted that Bethany could not show a “reasonably recent” incidence of family violence, inasmuch as Willie's most recent physical assault against her had occurred almost a year earlier. Bethany then filed an application for discretionary appeal, which this Court granted, and this appeal followed.

The grant or denial of a motion for a protective order lies within the sound discretion of the trial court, and its decision on such a motion will not be reversed absent an abuse of that discretion. Pilcher v. Stribling, 282 Ga. 166, 167, 647 S.E.2d 8 (2007). An abuse of discretion occurs where a ruling “is unsupported by any evidence of record or where that ruling misstates or misapplies the relevant law.” Mathis v. BellSouth Telecommunications, 301 Ga.App. 881, 881, 690 S.E.2d 210 (2010). See also Watson v. Elberton–Elbert County Hosp. Auth., 229 Ga. 26, 27(1), 189 S.E.2d 66 (1972) (a ruling of the trial court which is within the court's discretion will be reversed where it “is based upon an erroneous view of the law”). On appeal, Bethany asserts that the statute under which she sought a protective order, OCGA § 19–13–3, does not absolutely require her to show a “relatively recent” act of family violence. Consequently, she argues, the court below abused its discretion when it found that her inability to show a “relatively recent” act of physical violence against her by Willie precluded her from satisfying the statutory requirements for a protective order. We agree.

In pertinent part, OCGA § 19–13–3 provides as follows:

(b) Upon the filing of a verified petition in which the petitioner alleges with specific facts that probable cause exists to establish that family violence has occurred in...